Barnes v. Marangola

Filing 2

ORDER that Petitioner's 1 Petition for Writ of Habeas Corpus is dismissed without prejudice. Signed by Hon. Frank P. Geraci, Jr. on 12/22/17. (copy of this order mailed to petitioner Barnes)(TF)

PS/CD

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANDRE BARNES,
Petitioner,

17-CV-6813-FPG

v.

DECISION AND ORDER

AUSA MELISSA M. MARANGOLA,
Respondent.
___________________________________
INTRODUCTION
Pro se Petitioner Andre Barnes, who is currently detained in Livingston County Jail, filed
this action pursuant to 28 U.S.C. § 2241 and contends that his continued detention in Respondent’s
custody is unlawful. ECF No. 1. On March 31, 2016, the Government filed a four-count federal
indictment charging Petitioner with violations of 18 U.S.C. §§ 1591(a), (b)(1), (b)(2), and 1594(c).
Petitioner is awaiting trial before this Court on those charges, see 16-CR-6029-DGL-JWF. ECF
No. 22. The Petition is dismissed without prejudice for the reasons set forth below.
DISCUSSION
Petitioner seeks dismissal of the indictment for “want of jurisdiction,” raising grounds of
lack of personal and subject-matter jurisdiction, speedy trial violations, and lack of consent to
magistrate jurisdiction, and a writ of prohibition “precluding AUSA from proceeding against
[him].” ECF No. 1 at 7. Because Petitioner’s request, if granted, “would be dispositive of the
underlying criminal charges for which he has been indicted, he must exhaust his claims at trial and
on direct appeal before he can assert them in a habeas action.” Morrow v. Terrell, 715 F. Supp.
2d 479, 480 (S.D.N.Y. 2010) (citing Johnson v. Ashcroft, 40 F. App’x 633, 634 (2d Cir. 2002)
(summary order) (“Even if we construe Johnson’s pro se petition liberally so as to conclude that it
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seeks relief from the Bureau of Prisons, we find that the petition would be premature because, at
the time Johnson submitted the petition, his criminal trial had not yet commenced.”)); see also
Garcon v. Palm Beach Cnty. Sheriff’s Office, 291 F. App’x 225, 226 (11th Cir. 2008) (holding that
a federal pretrial detainee’s Section 2241 petition is premature where his claims are properly
brought during his criminal case and on direct appeal).
CONCLUSION
For the reasons stated, Petitioner’s application for a writ of habeas corpus (ECF No. 1) is
dismissed without prejudice. Because Petitioner has not made a “substantial showing of the denial
of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability shall
issue. 1 The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore leave to appeal as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962).

IT IS SO ORDERED.
Dated: December 22, 2017
Rochester, New York
__________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

1

Although “[i]t is somewhat unclear whether a certificate of appealability would be required for [a section 2241
petitioner] to appeal from the Court’s decision . . . [t]o the extent that a certificate of appealability would be required
. . . it shall not issue.” Cotona v. Fed. Bureau of Prisons, No. 13 CIV. 609 JMF, 2013 WL 5526238, at *2 (S.D.N.Y.
Oct. 7, 2013) (comparing cases).

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